On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-04-0371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012 -
Before Judges Messano and Yannotti.
Defendant Marc A. Jordan appeals from the denial of his motion to correct an illegal sentence. We affirm.
On January 11, 1999, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, and single counts contained in two other indictments. Pursuant to the plea bargain, the State agreed to dismiss the remaining counts of the indictments, a summons complaint, and further agreed not to recommend an extended term of imprisonment. Additionally, the State agreed to recommend a thirteen-year term of imprisonment, three years without parole eligibility, and that the sentence run concurrently to sentences defendant faced on open charges in two other counties.
On June 25, 1999, defendant was sentenced in accordance with the plea bargain and ordered to pay restitution in the amount of $2625. We affirmed defendant's sentence on appeal. State v. Jordan, No. A-2602-01 (App. Div. Feb. 10, 2003). Defendant filed a petition for post-conviction relief (PCR), which was denied. He filed, but subsequently withdrew, his appeal.
Defendant filed a motion to withdraw his guilty plea on August 24, 2005. He appealed the trial court's denial of that motion, and we affirmed. State v. Jordan, No. A-1449-05 (App. Div. June 15, 2006). Defendant again moved to withdraw his guilty plea in the trial court alleging the State had withheld exculpatory evidence. After the motion was denied on the basis of res judicata, defendant again appealed. We reversed the trial court's decision and remanded so the motion could be heard on its merits. State v. Jordan, No. A-5661-07 (App. Div. Mar. 5, 2010). On remand, the trial court denied defendant's motion to withdraw his guilty plea on the grounds that the State suppressed exculpatory evidence.
On November 23, 2009, defendant filed a motion before the trial court to withdraw his guilty plea arguing the sentence imposed was illegal. That motion was heard by a different judge, Judge James Den Uyl, and denied in an order dated January 21, 2010, accompanied by a brief letter decision.
Defendant appealed from Judge Den Uyl's order and moved for summary disposition. We denied his motion for summary disposition, but granted the request that his motion brief be accepted as his merits brief. Defendant moved before us for a remand so he could file another motion in the trial court to vacate his guilty plea because it lacked a factual basis. We denied that motion.*fn1
Defendant then moved to withdraw subsection A of his merits brief in which he argued that the imposition of a thirteen-year sentence with a three-year period of parole ineligibility was "not authorized by law." He also sought a remand regarding subsection B of his brief in which he argued that the judgment of conviction must be amended to reflect the proper amount of restitution. We granted his motion to withdraw subsection A, but denied his request for a remand.
On August 8, 2011, defendant moved to reinstate subsection A of his merits brief. We granted the request.
The arguments now raised by defendant lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
As to the claim that defendant's sentence was not authorized by law, Judge Den Uyl properly noted that the sentencing judge weighed the appropriate aggravating factors and the lack of any mitigating factors. Judge Den Uyl further noted that defendant received the benefit of the plea bargain, even though a harsher sentence could have been imposed. Defendant urges that because he received a thirteen-year sentence, i.e. less than the midpoint of the first-degree sentencing range, it was improper to impose a three-year period of parole ineligibility. However, this argument ignores much that has changed since the Court's decision in State v. Natale, 184 N.J. 458, 466 (2005), which eliminated presumptive sentences in the Code. A discretionary period of parole ineligibility may be imposed when "the aggravating factors substantially outweigh the mitigating factors" as long as "the term of ineligibility [does] not exceed one-half of the base term." State v. Soto, 385 N.J. Super. 247, 255 (App. Div.), certif. denied, 188 N.J. 491 ...